Human Rights and the Immunities of Foreign States and International Organizations
University of Siena - Department of Law
in Erika de Wet and Jure Vidmar (eds.), HIERARCHY IN INTERNATIONAL LAW: THE PLACE OF HUMAN RIGHTS, OUP, 2012, pp. 71-113
By extensively drawing on existing judicial practice, this chapter argues that the relationship between human rights and the immunities of States and IOs may be conceptualized as a tension among competing rules which can be worked out by means of interpretation, thus as an apparent conflict of norms open to the application of conflict avoidance techniques.
The chapter particularly advocates an ‘alternative-remedies test’ as a reasonable balance between the values and interests underlying the competing rules at stake. It considers that jus cogens may well play a role as a chiefly important element to be taken into account in this balancing process. The overall conclusion is that current and evolving practice in this field lends support to the emergence of a de facto human rights-based normative hierarchy in international law.
Keywords: human rights, immunities, alternative remedies
JEL Classification: K33
Date posted: December 15, 2010 ; Last revised: November 8, 2012